Citation Nr: 0424055
Decision Date: 08/30/04 Archive Date: 09/07/04
DOCKET NO. 03-04 796 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Basic eligibility for Department of Veterans Affairs (VA)
pension benefits.
WITNESSES AT HEARING ON APPEAL
Appellant and Son
ATTORNEY FOR THE BOARD
E. Ward, Associate Counsel
INTRODUCTION
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a decision of the Manila, Philippines,
Regional Office (RO) of the Department of Veterans Affairs
(VA), which denied the appellant eligibility for VA pension
benefits.
The appellant testified before the undersigned at a
videoconference hearing in September 2003. A copy of the
transcript of that hearing is of record.
FINDINGS OF FACT
1. All relevant evidence necessary for disposition of the
appeal has been obtained, and the duties to notify and assist
have been satisfied.
2. Certification from the U.S. service department reflects
no recognized qualifying service for purposes of VA pension
benefits.
CONCLUSION OF LAW
The appellant does not have qualifying service for
eligibility for VA pension benefits as a matter of law. 38
U.S.C.A. §§ 101(2), 107 (West 2002); 38 C.F.R. §§ 3.1, 3.6,
3.40, 3.41, 3.203 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims' Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), Public Law
No. 106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code, concerning the notice and assistance to be afforded to
claimants in substantiating their claims. See VCAA § 3(a),
114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38
U.S.C.A. §§ 5103, 5103A (West 2002)). In addition,
regulations implementing the VCAA were published at 66 Fed.
Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003).
Unlike many questions subject to appellate review, the issue
of whether the appellant has qualifying service for
particular VA benefits such as pension, by its very nature,
has an extremely narrow focus. In a November 2001 VCAA
letter and other correspondence including a September 2002
denial letter, and January 2003 statement of the case, the RO
set forth the law and facts in a fashion that clearly and
adequately explained the basis of its decision. The
appellant was also provided a hearing before the undersigned,
in September 2003.
The appellant has been advised that his service must be
certified as qualifying by the appropriate military
authority. The appellant has neither submitted nor made
reference to any U.S. service department records, which would
tend to establish that he had qualifying service for VA
pension purposes. Thus, the Board concludes that that there
are no outstanding records or other evidence that could
substantiate the claim.
In essence, this is a case in which the law and not the
evidence are dispositive, and the appeal must be terminated
because of the lack of entitlement under the law. Sabonis v.
Brown, 6 Vet. App. 426 (1994). Under these circumstances,
where there is no reasonable possibility that providing
additional assistance would aid in substantiating a claim, VA
is not required to take any further action to assist the
claimant. 38 U.S.C.A. § 5103A(a) (West 2002). Accordingly,
the Board finds that the assistance and notification
requirements of the VCAA have been satisfied to the extent
necessary in this matter.
II. Factual Background
The appellant filed a claim for compensation and/or pension,
Form 21-526, in September 2001. In a May 2002 letter, the RO
requested that the appellant specify the conditions for which
he was claiming VA benefits. In his response, the appellant
indicated that his claim was for benefits based on old age
and military service.
The RO made several requests for verification of the
appellant's service from the service department, based on the
information provided by the appellant. Documents received
from the National Personnel Records Center (NPRC) include
Affidavits for Philippine Army Personnel in which the
appellant reported that he was inducted into guerrilla
service with the USAFFE from October 1942 and was assigned to
various units until November 1945. A Form AGUZ 632 verifies
recognized guerrilla service from January to February 1945
and from March to November 1945, although it is not entirely
clear that this certification pertains to the appellant. It
does not appear that the specific service claimed by the
appellant has been recognized by the U. S. service
department.
The appellant also submitted various supporting Philippine
Army documents, purporting to certify guerrilla service in
the USAFFE from October 1944.
In September 2002, the RO notified the appellant that he was
not eligible for non-service-connected pension benefits
because the law does not include VA pension benefits as a
benefit payable based on Philippine Army or recognized
guerrilla service.
III. Law and Regulations
Eligibility for VA benefits is governed by statutory and
regulatory law that defines an individual's legal status as a
veteran of active military, naval, or air service. 38
U.S.C.A. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1, 3.6 (2003).
The law authorizes the payment of non-service-connected
disability pension to a veteran of a war who has the
requisite service and who is permanently and totally
disabled. 38 U.S.C.A. §§ 1502, 1521.
The term "veteran" is defined as a person who served in the
active military, naval, or air service, and who was
discharged or released therefrom under conditions other than
dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).
"Active military, naval, and air service" includes active
duty. "Active duty" is defined as full- time duty in the
Armed Forces. 38 C.F.R. § 3.6(a)-(b). "Armed Forces" consists
of the United States Army, Navy, Marine Corps, Air Force, and
Coast Guard, including their Reserve components. 38 C.F.R. §
3.1.
Service in the Commonwealth Army of the Philippines from and
after the dates and hours when called into service of the
Armed Forces of the United States by orders issued from time
to time by the General Officer, U.S. Army, pursuant to the
Military Order of the President of the United States dated
July 26, 1941, is included for compensation benefits, but not
for pension benefits. Service department certified
recognized guerrilla service, and unrecognized guerrilla
service under a recognized commissioned officer (only if the
person was a former member of the United States Armed Forces
(including the Philippine Scouts), or the Commonwealth Army,
prior to July 1, 1946) is included for compensation benefits,
but not for pension or burial benefits. 38 U.S.C.A. § 107
(West 2002); 38 C.F.R. § 3.40(c), (d) (2003).
In general, service before July 1, 1946, in the organized
military forces of the Government of the Commonwealth of the
Philippines, while such forces were in the service of the
Armed Forces of the United States pursuant to the military
order of the President dated July 26, 1941, including among
such military forces organized guerrilla forces under
commanders appointed, designated, or subsequently recognized
by the Commander in Chief, Southwest Pacific Area, or other
competent authority in the Army of the United States, shall
not be deemed to have been active military, naval, or air
service for the purposes of awarding non-service-connected
pension benefits. See 38 U.S.C.A. § 107(a); 38 C.F.R. §§
3.40, 3.41.
For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity or burial benefits, VA
may accept evidence of service submitted by a claimant, such
as a DD 214, Certificate of Release or Discharge from Active
Duty, or original Certificate of Discharge, without
verification from the appropriate service department if the
evidence meets the following conditions: (1) the evidence is
a document issued by the service department, (2) the document
contains needed information as to length, time, and character
of service; and (3) in the opinion of the VA the document is
genuine and the information contained in it is accurate. 38
C.F.R. § 3.203(a).
Title 38 of the United States Code authorizes the Secretary
of Veterans Affairs (Secretary) to prescribe the nature of
proof necessary to establish entitlement to veterans'
benefits. See 38 U.S.C.A. § 501(a)(1). Under that authority,
the Secretary has promulgated, inter alia, 38 C.F.R. §§ 3.41
and 3.203(a), (c), to govern the conditions under which the
VA may extend veterans' benefits based on service in the
Philippine Commonwealth Army. Parenthetically, the Board
notes that in December 2001, the regulations contained at 38
C.F.R. §§ 3.8 and 3.9 were redesignated as 38 C.F.R. §§ 3.40
and 3.41, respectively. See 66 Fed. Reg. 66,763, 66,767 (Dec.
27, 2001).) Those regulations require that an applicant
prove his service in the Philippine Commonwealth Army (and
thus his veteran status) with either official documentation
issued by a United States service department or verification
of the claimed service by such a department. See 38 C.F.R. §
3.41(a) (authorizing veteran status for Philippine veterans
"from the date certified by the Armed Forces [of the United
States]"); 38 C.F.R. § 3.203(a) (requiring service department
documentation of service where available); § 3.203(c)
(requiring service department verification of service where
documentation is not available).
In cases for VA benefits where the requisite service is at
issue, the relevant question is whether the alleged veteran
has qualifying service under Title 38 of the United States
Code and the regulations promulgated pursuant thereto. See
Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).
Where service department certification is required, the
service department's decision on such matters is conclusive
and binding on the VA. see 38 C.F.R. § 3.203(c); Duro v.
Derwinski, 2 Vet. App. 530, 532 (1992). If the United States
service department refuses to verify the claimed service of
the alleged veteran, the claimant's only recourse lies with
the relevant service department, not the VA. Soria, 118 F. 3d
at 749.
IV. Legal Analysis
Review of the record reveals that information provided by the
appellant was provided to and used by the service department
in its verification process. There is no further contention
that the verification of the service department is erroneous
in such a way as to warrant a further request to the service
department to verify or recertify additional military
service.
As noted above, the RO made two requests for verification,
and received no verification of the type of service that
would qualify the appellant for pension benefits. Even
accepting that Form AGUZ 632, verifying recognized guerilla
service, was indeed the appellant's, or that the appellant's
reported Philippine Army and/or recognized guerrilla service
is exactly as he has claimed, such service is not qualifying
service for an award of VA pension benefits as a matter of
law.
The service-related documents submitted by the appellant also
fail to satisfy the requirements of 38 C.F.R. § 3.203 as
acceptable proof of service, as they are not official
documents of the appropriate U.S. service department. See
Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997). Further,
these documents certify guerrilla service in the USAFFE,
which is not qualifying service for an award of pension
benefits under VA governing law and regulations.
The Board has carefully reviewed the entire record in this
case. However, this is a case in which the law is
dispositive. Basic eligibility for pension is precluded
based on the veteran's service. Therefore, the appeal must
be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
Basic eligibility for VA non-service-connected pension
benefits is denied.
____________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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2003
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